Remote hearing success means no backlog in some family courts

McFarlane: Everyone’s fatigued

The family court system has adapted so well to remote working that some courts do not have a backlog of cases, the president of the Family Division said yesterday.

Describing the development as “surprising”, Sir Andrew McFarlane said judges, lawyers, court staff and everyone else involved “can hold your heads high looking back at what we’ve achieved over the last six months”.

Speaking at the opening of family law group Resolution’s online ‘Future of family practice’ conference, he said: “We’re in a position now where some of the courts haven’t got a backlog of cases. Others have but they’ve got a plan for dealing with them, and people are just cracking on and getting through the work.

“We are sitting and have sat more days in family than ever before despite the fact we haven’t had courtrooms.”

The most recent government figures for the criminal courts showed there were 510,000 outstanding cases in the magistrates’ courts, and 48,713 outstanding Crown Court cases.

Sir Andrew commissioned research not long after lockdown from the Nuffield Family Justice Observatory about the experience of remote hearings – which was published in May – and a follow-up study will come out later this month. It has had well over 1,000 responses.

It was already clear, he said, that he did not need to issue any more guidance on remote hearings as practitioners were used to this way of working.

But this success came “at a price”, Sir Andrew cautioned, saying he had the feeling that, across the system, “everyone’s fatigued”. It was “demoralising” to face the prospect of many more months having to work like this.

“So it is all the more important for you to look to your wellbeing,” he urged lawyers.

While the ability to work digitally had been “accelerated by years” in some respects – digital consent orders are being turned around in a week or so, compared to four or five months before in divorce centres – the president said “I am clear that I will fight any suggestion” by policy makers that family cases should remain online post-pandemic.

While a few hearings, such as case management hearings, would continue online, “we must get back to face to face as soon as possible”.

Noting that “before Covid we were in crisis anyway”, the judge added that the reports of the working groups on public and private law cases would be published in the next month – the proposals were aimed at reducing volume in the system, which would only help at the moment.

While changes to public law children cases largely required changes in professional practice, private law reform would be harder “as the behaviour that needs to change is largely that of parents”, Sir Andrew said.

The expert working group report would also come out soon. “They discovered far more problems around the engagement of experts than we knew about,” he said, so much so that legal aid rates were not the number one reason experts refused instructions.

Sir Andrew said the recent appointment of three new High Court judges meant the Family Division was up to its full quota for the first time in five years, but there continued to be a shortage of district judges. This was particularly unfortunate as district judges have been under more pressure than any other judges during recent months, he reckoned.

However, he said there had been “a good intake of deputies and my hope is that the next district judge competition will have more applicants”.

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